Willie Penrose (Longford-Westmeath, Labour)

I am pleased to have the opportunity to contribute to the debate on the important Bill before the House. I must comply with my legal obligation by making a declaration of interest by stating I am a practising barrister and a member of the Law Library. However, I am not speaking as a puppet, an advocate or at the behest of any organisation or sectional interest. I will express my views on certain matters which may well overlap or coincide with those of the various regulatory authorities and professional authorities. I will make suggestions where I believe improvements can be made to the Bill. I genuinely anticipate that the Minister will at least assess, evaluate and consider them in the context of formulating Committee Stage amendments. I hope he will not exhibit a closed-mind mentality to suggestions from whatever side of the House they may emanate, take the stance that he knows best or adopt a paternalistic attitude, which would be the worst of all worlds. Openness to alternative ideas and propositions could help to make this a landmark Bill, which I know the Minister wants it to be. It has a major contribution to make.

I wish to make it clear that legislation has to be introduced in line with the commitments in the programme for Government to which I personally signed up and from which let me not resile. Let us not try to play every side of the House. The commitments given and the Bill must be enacted to ensure independent regulation is introduced for the Law Society of Ireland and the Bar Council of Ireland. Therefore, let us not run away or resile from that to which we have signed up.

I have no problem with the Bill and would not attempt to argue from the proposition that these bodies should be subject to self-regulation. Notwithstanding this, there is no empirical evidence that the current system which has been updated by the Minister's own body, the Law Society of Ireland, and the Bar Council of Ireland has failed in any respect. As Deputy Charles Flanagan said, it has been forgotten that there are lay majorities in both bodies. The people concerned make an evaluation and have an input to the disciplinary process. In that regard, they have been progressive. However, the system of regulation proposed in the Bill goes way beyond what the Competition Authority recommended, a model based on the system introduced in the United Kingdom in the Legal Services Act 2007. In effect, it was an overarching regulation for both wings of the profession that permitted day-to-day regulatory functions to be reserved to the Law Society and the Bar Council. This appears to have worked well.

I will not disclose Cabinet matters, but I understood that the Minister committed at the Bill's inception to enter into meaningful negotiations with the various regulatory authorities, namely, the Bar Council and the Law Society, regarding the form of regulatory structure to be introduced. However, this commitment was not adhered to. In his reply to a request for such discussions, he stated that the regulatory structure had been agreed by the Government and was not open to amendment. He also stated that the final decision on the forms of business structure or partnership was the Government's and that it would represent settled Government policy. Once again, it was not open to discussion or amendment.

This was not how I understood the matter was going to be advanced. I will go no further, but fundamental changes are being proposed in the Bill and I am somewhat surprised by the entrenched view. At least two issues need to be addressed, but other issues are also involved. People seem to have mistaken the Minister's view of the matter. The education issue will be up for discussion.

I come from a non-legal background. The way the Bar Council and King's Inns operated allowed me, a person from a non-professional, working class background, to achieve what I wanted. No major obstacle was ever placed in my way. That I did it as a mature student made it more difficult, as most people know.

Perception often becomes reality even if it does not accord with the facts. In the Bill as drafted, 11 members of the authority will be appointed by the Government upon the Minister's recommendation. Although I understand that he is moving away from this provision, it represents a staggering level of State control over the profession. The Bar Council and the Law Society, the relevant bodies, will nominate two members each. The selection and appointment of members to the legal services regulatory authority poses an issue, but I understand the Minister is dealing with it. I accept his bona fides in that regard.

The Minister will exercise minute control over many of the authority's functions, which were outlined by a previous speaker. During the few months I was a member of the Cabinet, I learned that some provisions must be included so that the Bill complies, not with what the Minister wants, but with what the parliamentary draftsperson wants. We ordinary legal people would rather have the system simplified and I understand why the Minister might not want to be named as the person who must sanction this or exercise control over that, but the legal counsel advised. One needs to examine the Bill to appreciate the number of times that ministerial consent or approval is required. The direct ministerial involvement provided for in the Bill might only be apparent, but it could lead to the perception of a worrying degree of Government interference in the legal profession. This is not the Minister's intention, as he is a legal person of eminent renown, but I am concerned about the perception becoming reality.

The Government might not do something itself, but it is involved in cases through its agencies. No more than myself, the Minister has probably taken many cases against the State as well as acted for it. The State is involved in almost half of all litigation procedures that appear before courts, be it in regard to criminal or civil matters, judicial reviews, administrative issues, etc.

People could perceive the Bill as compromising the profession's long-cherished independence. Many people did not give this perception great credence, but I read a report of the recent international legal bodies conference, which was attended by the American Bar Association, the International Bar Association and the Council of Bars and Law Societies of Europe. While they have an interest, these are independent bodies and, at the conference, each expressed significant concerns about the perceived lack of independence and the proposals' cost. These proposals have provoked international concern and are matters of comment. Any proposed authority must be transparently independent of the Executive and-or ministerial control over the manner in which it exercises its functions, powers and obligations. I feel strongly about this issue.

The Minister has probably replied to my next point and will state that this is a different matter. Other bodies have been established to exercise control over various matters, including discipline, admissions, etc., but they do not have memberships that are as large as this authority and are not subject to the same degree of ministerial input.

A number of staff will need to be employed. Will anyone employed by the Law Society and so on form part of the legal services regulatory authority? Many of them have a great degree of proficiency in various fields. Perhaps they could be redeployed to the authority.

There will be costs. When one employs people, there will be salaries, pensions and expenses. We know the answer to this, in that the members of the profession will initially be required to pay for it, but the cost ultimately will be devolved to the clients.

The authority is to be financed by way of a levy on the profession and the costs will be substantial. The levy's proportions will depend on the number of complaints and members in each wing, namely, the Bar Council and the Law Society. There are 2,300 barristers, but there must be 9,500 or 10,000 solicitors, which is the Minister's profession. That is a ratio of 4:1. The levy will impact on the Bar Council and Law Society's finances, which they need for their various buildings, etc. The Law Society is cherished as a centre of excellence and there is great collegiality. There are many things that people do not see. For example, young barristers get help from barristers who have been around for a number of years. The collegiality and friendships are important. The Law Society continues to expand and must also spend money on training, continuing professional development and so forth, all of which are important.

The complexity of the regulatory framework will considerably increase the cost of practising at the Bar. I will not speak for solicitors, as I am not one, but I presume the case will be the same for them. The cost will represent a significant obstacle to entry into the profession. How will young people who come from a background similar to my own and who wish to be barristers be able to access their preferred profession after working hard to secure qualifications at an academic level? The Minister has professed himself as an advocate of opening up access to people from every socioeconomic background. In this light, it is ironic that his first act of reformation effectively restricts such access and makes it the preserve of the rich. In other words, we will go back to the era of elitism, which should be wiped away. People from every socioeconomic background should be allowed to access the profession. This matter must be considered.

There is a significant number of low earners in the legal profession. While there is no denying that some people are making a good living, that is not the full picture. In fact, those earning only modest sums may be forced to leave the profession, as we have seen happening in recent years. If the legal profession were as much of a gravy train as it is often portrayed, why is the exit door crammed with those who wish to leave? The additional costs for practitioners who stay on in the profession will be passed on to clients, which will have the opposite effect to the Minister's stated objective, namely, to reduce costs to the public. The general cost provisions of the Bill are generally in the public interest and amount to a noble and important objective. However, theories and objectives are one thing but all that matters is what happens in practice.

There are significant costs associated with the proposed legal practitioners disciplinary tribunal. This is of particular concern given that we already have an independent, cheap, accessible, effective and fair disciplinary process which includes a majority lay representation. That system was put in place some years ago and there does not seem to be much evidence of a clamour for change from the public. The proposed regulatory authority has several powers and functions which give rise to fundamental concerns, including its obligation to devise proposals to advance issues such as the unification of the two branches of the profession, provisions for the establishment of partnerships, including multidisciplinary practices, direct access to barristers and so on. The important question is whether these changes ultimately will be in the interest of the public.

The Bill provides for the establishment of five new regulatory bodies. The regulatory authority will have 11 members, the complaints committee of the regulatory authority will have 16 and the legal practitioners disciplinary tribunal will have 16. In addition, there will be the office of the legal costs adjudicator and the advisory committee on grants of patent and precedent. The first three of these bodies - the regulatory authority, the complaints committee of the regulatory authority and the legal practitioners disciplinary tribunal - will have 43 members between them. There can be little doubt that significant costs will arise in regard to the implementation of these proposals. I understand that the Bar Council's regulatory functions are carried out at a cost of some €200,000 per annum, with members of the disciplinary bodies, which all include a lay majority, doing the work on a voluntary basis. In fairness to him, the Minister has strongly advocated the abolition and streamlining of various quangos. Yet he is setting up, under these provisions, a parallel stream of quangos. That seems to be at odds with stated Government policy.

In regard to the proposals on partnerships and multidisciplinary practices, it is my understanding - the Minister will correct me if I am wrong - that they could be introduced on foot of proposals from the authority itself and that no further legislation is required for that purpose. Whatever emanates from the legal services regulatory authority should be subject to debate in this House. Multidisciplinary practices were considered by the Competition Authority but, peculiarly, were not recommended in its report. The independent referral Bar has been a cornerstone of our democracy since the foundation of the State and I have observed no public outcry for its abolition. There is a rule in the Bar, which is set down in the code of ethics and practice, called the cab rank rule. It states that any person who wishes to initiate legal proceedings and has a cause of action or stateable case will be represented where necessary by a barrister. I am concerned that the ability of counsel to take on cases at no cost to clients who cannot afford those services will be severely diminished or eroded by these provisions of the Bill. The cab rank rule must be preserved.

As I said, the Competition Authority specifically advised against solicitor or barrister partnerships on the basis that they would effectively reduce competition. Such partnerships will concentrate specialisation in small groups. Deputy Michael Healy-Rae made the point that increased costs and increased complications will adversely affect the ability of disadvantaged clients to access the legal system. The effect of these changes will be to undermine the Law Library - perhaps that is what some people want - and therefore undermine small to medium-sized firms of solicitors, many of which are based in rural areas, and their ability to challenge the larger firms by choosing barristers with appropriate expertise.

This State has the same population as Birmingham. Business structures that are appropriate for other countries of significant size may not be appropriate here. I say this as a word of caution. The proposed structures have only just been introduced in the United Kingdom and have not yet been assessed as to their viability or suitability. We should proceed with great caution. Partnerships of whatever kind will increase rather than reduce costs. By allowing such structures, the cost of insurance will increase, acting as another barrier to entry and continuing practice within the profession.

The Bain report investigated the issues in a Northern Ireland context and came down against these structures. Direct access to barristers is not permitted in many similar law jurisdictions, including in the North, Scotland, England, Wales, New Zealand and Australia. As a barrister myself, it is not something I would embrace. It is importance that the independence and objectivity which one has when one stands back and gives an opinion is retained. Partnerships will dilute the primary duty and first obligation of a barrister to the client and the court.

I have no objection to other provisions in the Bill, such as that the wearing of wigs and gowns be made optional. In regard to the provisions allowing solicitors to become senior counsel, it will be interesting to see how that works but I have no difficulties with it. However, I am perplexed by the apparent necessity to include in the Bill a section which provides that solicitors and barristers, on being engaged by a client, must agree as to who should be the leader in a case. If they are unable to do so, the client will ultimately make the decision. As a practising barrister, I am aware that under the current rules applied by the Bar Council, in place since June 2007, we must provide cost estimates to instructing solicitors and, by extension, to the client. Therefore, there is already a high degree of transparency in terms of costs. It did not require any legislative underpinning or sanction in order for barristers to provide that type of information. Moreover, it enables solicitors and clients to shop around in what is clearly a competitive environment.

Unfortunately, I am out of time. There are several issues I intend to deal with in detail on Committee Stage. I hope the Minister will engage with us in the spirit in which we will put forward proposals, to strengthen the Bill in the interests not only of the professions but of the clients they serve.

See this speech in context